Jersey Unreported Judgments

Magistrate's Court Appeal against sentence.

[2019]JRC211

Royal Court

(Poursuite Criminelle)

24 October 2019

Before     :

Sir Michael Birt, Esq., Commissioner, and Jurats Ramsden and Dulake.

The Attorney General

-v-

Shaun Dylwin Price

Advocate M. J. Haines for the Appellant

Advocate C. R. Baglin for the Crown

JUDGMENT

THE commissioner:

1.        This is an appeal against a sentence of 8 months' imprisonment imposed on the Appellant by the Relief Magistrate, Advocate David Le Cornu on 27^th September, 2019 on one charge of possession of cannabis with intent to supply. 

2.        The factual background to the offence was as follows:

3.        A search warrant was executed by police officers at the Appellant's home address at 7:15am on 4^th April, 2019.  There, the police found three bars of cannabis together with four wraps of cannabis in silver foil and a further small amount of cannabis.  The total amount found was approximately 312 grams.  

4.        The police also found three pairs of scales, two cutters and a chopping board.  Two of the scales and one of the cutters were subsequently analysed and found to have traces of cannabis, showing that they have been used for cutting up and weighing cannabis.  

5.        The Appellant was arrested and interviewed.  He admitted to using 5 to 10 spliffs of cannabis a day but answered, "no comment" to questions concerning the scales and chopping board.  Later that day police inspected his mobile phone and found text messages suggestive of dealing, such as, "Can I get 5 tonight please?"  When further interviewed the Appellant replied, "no comment" to questions about these text messages.  

6.        As already mentioned the matter came before the Magistrate's Court for sentencing on 27^th September.  After the Centenier had outlined the facts Advocate Haines began his mitigation by saying that the Appellant's basis of plea was as set out in paragraph 15 of the Social Enquiry Report from the Probation Service. 

7.        Paragraph 15, recorded the Appellant as saying that he was minding the cannabis for another person, whom he declined to name.  He said his role was to divide the bars into smaller amounts ready for sale, but he himself did not sell any of the cannabis. The wraps which he had prepared were to be collected by another unnamed person and presumably sold by that person.  He said that as a reward for his services he received sufficient free cannabis to continue his own drug habit, which he said was some 5 to 10 joints a day at that time. 

8.        When Advocate Haines made the assertion about the basis of plea Advocate Baglin objected.  He pointed out that no written basis of plea had been put forward by the defence, that he had not seen the Social Enquiry Report in accordance with normal practice in the Magistrate's Court and that what was being said was inconsistent with the text messages which suggested that the Appellant had been selling wraps of 5 grams for cash.  

9.        Faced with this argument, the Magistrate raised the question of whether there was any need for a Newton Hearing, but neither advocate submitted that it was necessary and the matter proceeded without one.  

10.      In his mitigation before the Magistrate, Advocate Haines pointed out the following matters:-

(i)    Although the Appellant had some historical convictions, largely committed whilst his marriage was breaking up, there had been no convictions since 1997, i.e. over 20 years earlier.  

(ii)   The Appellant was aged 54 and had an excellent work record with a reference from his current employer keeping his job open, if he was not sent to prison.  

(iii)  The Appellant had suffered a series of recent bereavements.  His parents died in November and December 2015, respectively, his ex-wife died in 2017 and his sister died in November 2018.  These all preceded the offending and he had increased his use of cannabis as a way of coping with these bereavements. 

(iv)  Most significantly, Advocate Haines pointed out that the Appellant's partner of 10 years had died unexpectedly in May 2019 which was of course after the offending.  The Appellant had been about to move in to live with the partner and her two children, a boy of 22 and a girl, aged 13.  He did in fact move into the home following his partner's death in order to look after her children and provide financial, emotional and practical support for them.  He was very much a step father figure to them.  If the Appellant was sentenced to a prison term, the partner's children would have to move as the boy did not earn enough to support the continued living in the family home. 

(v)   Following the offence the Appellant had self-referred to the Drug and Alcohol Service although, due to an administrative error on their part, the necessary work had not started.  

11.      In summary, Advocate Haines submitted to the Magistrate that, in view of the effect on the partner's children if a prison sentence were imposed and the other mitigation available, there were exceptional circumstances which justified a non-custodial sentence.  He proposed that the Magistrate follow the suggestion in the Social Enquiry Report of a six months' probation order coupled with a community service order.  

12.      Having retired to consider his conclusion the Magistrate imposed a sentence of 8 months' imprisonment.  He said, he did not find exceptional circumstances.  He also specifically rejected the Appellant's explanation about minding the cannabis for somebody else.   The Magistrate said this,

"I find that there are no exceptional circumstances in this case.  The matters mentioned by Mr Haines and in particular the bereavements might have explained possession of a personal amount, but not a commercial amount of this nature.  If you were making no gain from minding and cutting up the cannabis, then I don't understand why you do it and I am afraid I reject your explanation.  I have no alternative but to sentenced you to imprisonment, and you will go to prison for eight months". 

13.      We turn now to summarise Advocate Haines's contentions on appeal.  

14.      First, he says the Magistrate sentenced on the wrong factual basis.  Given that there was a dispute between the prosecution and the defence as to whether the Appellant was a retail dealer or a minder, the Magistrate should either have ordered a Newton Hearing or should have sentenced on the Appellant's version of the facts.  But the Magistrate did neither.  He rejected the Appellant's version and sentenced on the prosecution version of events.  Advocate Haines submitted that this was an error on the Magistrate's part. 

15.      Secondly, he submitted that the Magistrate should have found exceptional circumstances by reference to the various bereavements which the Appellant had suffered, and in particular the effect of imprisonment upon his ability to support and look after the deceased partner's children at a time when they were grieving for their mother.  

16.      In this respect Advocate Haines produced material to this Court which was not before the Magistrate, which is unfortunate, but the Court considers it proper to have regard to it.  That material comprised letters from the two children, from their older sister and from their cousin together with a letter from the Children's Service.  He submitted that the Magistrate had given no reasons for rejecting the suggestion of exceptional circumstances and why he found there to be no alternative to imprisonment. 

17.      Thirdly, Advocate Haines submitted that for similar reasons the Magistrate should, even if he found there were not exceptional circumstances, have imposed a non-custodial sentence as an act of mercy. 

18.      Fourthly, Advocate Haines submitted that, even if prison was required, the sentence of 8 months' was manifestly excessive.  He said that the leading case of Campbell v Attorney General [1995] JLR 136, suggested a starting point of 2 years for one kilo or more of cannabis.  The amount in this case was 312 grams i.e. less than one third of a kilo.  That would suggest a starting point of some 8 months which would lead to a final sentence after mitigation of some 4 to 5 months.  

19.      The approach of the Court on a sentencing appeal is well established.  The Court may only allow an appeal where the sentence is wrong in principle or manifestly excessive.  It will not interfere merely because, if they had been sitting at first instance, the members of this Court would have passed a different sentence.  

20.      We take first Advocate Haines' submission concerning the factual basis upon which sentence was passed.  The general position in this respect is well established, both in this jurisdiction and in England and Wales and has been so ever since the leading case of R v Newton [1982] 77 Cr. App. R. 13.  The position is conveniently summarised in paragraph 5A-290 and 291 of the 2019 edition of Archbold.

21.      Where there is a difference between the prosecution and the defence as to the factual basis of sentence and that difference is material to the level of sentence, a Newton Hearing should be held in order to resolve the difference and determine the factual basis upon which sentence should be passed.  If in such circumstances the court proceeds without a Newton Hearing the court should sentence on the defendant's version of events unless that version is "manifestly false" or "wholly implausible".  However, a Court should be very cautious before making such a finding without hearing evidence and it also needs to give reasons for any conclusion to that effect. 

22.      In our judgment the Magistrate did not need to hold a Newton Hearing in this case.  Whether the Appellant was a minder who looked after the cannabis and sub-divided it into small wraps for sale before returning them to the dealer or whether he was himself a retail dealer at the lower end of the scale would not affect the level of sentence.  On either version he was closely involved in the retail sale of cannabis and it would therefore make no difference to the level of sentence the Magistrate should pass whether the prosecution version was correct rather than the defence version.  Accordingly, it made no difference in this case that the Magistrate acted on the prosecution version. 

23.      We should, however, make clear that the Magistrate was wrong to reject the defence version without hearing any evidence.  Whilst the existence of the text messages clearly raised questions as to the truth of the defence version of events, the messages were not so conclusive as to enable the Magistrate to decide against the defendant without hearing any possible explanation from him and allowing him the opportunity of putting forward any evidence in support.  If the Magistrate was not going to hear any evidence then he should have sentenced on the defence version of the facts. 

24.      However, for the reasons we have given, although the Magistrate proceeded wrongly in that respect it is not a valid ground of appeal because the difference in the versions of events made no difference to the sentence. 

25.      We should further add that it was wrong for the defence version to be sprung upon the prosecution and the Magistrate for the first time at the sentencing hearing.  As Blackstone, Criminal Practice 2019 edition states at D20.9:- 

"The responsibility for alerting the prosecution to the existence of a factual dispute rests with the defence and the prosecution should not be taken by surprise.  In this respect it is not sufficient that a different defence version emerges in the Social Enquiry Report.  It is the responsibility of defence counsel to inform the prosecution in writing ahead of any sentencing hearing of any disputed factual basis which may be material for sentencing purposes".  

26.      We consider next, briefly, Advocate Haines's fourth argument to the effect that, given the amount of drugs was approximately one third of a kilo, the starting point should have been no more than one third of the 2 year starting point for one kilo i.e. some 8 months.  

27.      We reject this argument.  Whilst the quantity of drugs is an important factor in sentencing, sentencing is not calculated on a linear basis according to the amount of drugs.  We cannot possibly say that, for the nature and scale of the defendant's involvement in drug trafficking even on his own version of events, a sentence of 8 months' imprisonment would be manifestly excessive if prison was the correct course of action.  

28.      We turn therefore to the main point put forward by Advocate Haines, namely that the sentence in this case should have been non-custodial and accordingly it was manifestly excessive or wrong in principle to impose a prison sentence.  

29.      Advocate Haines accepted that, were it not for the special features of the case, a sentence of imprisonment would be appropriate for involvement in drug trafficking of the nature in this case. 

30.      But, we agree that there were special circumstances in this case which should have lead the Magistrate to impose a non-custodial sentence.  A key factor is that, following the unexpected death of his partner after the offending, the Appellant moved in to provide emotional, practical and financial support to the teenage daughter of his partner as well as her older brother.  To deprive, in particular, the daughter of the support of the Appellant when she was still grieving over her mother's death was an additional trauma for her. 

31.      It is clear that she has been affected by the Appellant's imprisonment.  Her school was sufficiently concerned about her wellbeing following the Appellant's imprisonment that it referred her to the Children's Service.  We have a short report from the Children's Service and it is clear that the teenager is suffering from not only her mother's death, but also the absence of the Appellant.  

32.      When that factor is coupled with the fact that this matter arose after the offending, that the Appellant has not committed any offences for over 20 years and that he has an excellent work record, we conclude that, notwithstanding the nature of the offending, it was wrong to impose an immediate custodial sentence. 

33.      We therefore propose to quash the sentence of imprisonment and impose instead a six months' probation order and a sentence of community service.  The question then arises as to the length of community service.  We were informed that the defendant has served the equivalent of a 6 week sentence i.e. a little under a quarter of the sentence of 8 months' imprisonment.  The equivalent community service for an 8 months' sentence would be 140 hours.  We propose therefore to deduct 30 hours to reflect the time which he has served in prison. 

34.      Please stand up Mr Price.  We are going to allow this appeal therefore and sentence you instead to six months' probation and to community service of 110 hours. 

35.      I must warn you that if you do not stick rigidly to both of these orders, if you fail to attend the probation service when you are directed to or comply with their directions or if you do not turn up for community service or if you perform inadequately whilst you are there, then this matter can be referred to this Court, and if it is, it is highly likely that we will reimpose some form of custodial sentence.  So I warn you that you must stick absolutely by the sentence and perform it fully, do you understand. 

36.      We allow the appeal and substitute those sentences.

37.      Advocate Haines makes an application for costs.  Standard costs order made. 

Authorities

Campbell and Others v Attorney General [1995] JLR 136. 

R v Newton [1982] 77 Cr. App. R 13

Archbold 2019 edition.  

Blackstone's Criminal Practice 2019.